PETITIONER:
N.S. MEHTA & ORS.
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT20/04/1977
BENCH:
BEG, M. HAMEEDULLAH (CJ)
GUPTA, A.C.
KAILASAM, P.S.
CITATION:
1977 AIR 1673 1977 SCR (3) 664
1977 SCC (3) 260
ACT
Seniority--Whether the decision in Union of India v. M.
Ravi Verma & Ors, etc. (1972) 2 S.C.R. 992 contained an
invariable mechanical rule of seniority applicable to all
classes of services so that nothing beyond length of service
in a particular grade could determine seniority--Central
Secretariat Service Rules, 1962, Rule 17--Whether placing
those who have passed the typewriting test within two years
of the fixed date in separate category for the purpose of
promotion violates Articles 14 and 16 of the Constitution of
India.
HEADNOTE
Under the scheme which culminated in the promulgation of
the Central Secretariat Clerical Service Rules, 1962
(effective from 1-5-1954), it was provided that those offi-
cers who were otherwise eligible for confirmation in the
services at the initial constitution should also pass a
typewriting test to be held by the Union Public Service
Commission within a period of two years from 1-5-1956. The
names of the petitioners who had not passed the typewriting
test did not figure in the gradation list dated 7-2-1972
prepared for making promotions to the next grade of Assist-
ants. The petitioners challenged the orders on several
grounds, namely, (i) The principle of seniority contained in
the Ministry of Home Affairs’ O.M. dated 22-6-1949 as inter-
preted by this Court in 1972 (2) SCR 992 had not been ap-
plied to them; (ii) The impugned list was formulated in an
arbitrary fashion; (iii) Their seniority must date back to
their dates of promotion as Upper Division Clerks; and (iv)
Rule 17 of Central Secretariat Clerical Service Rules, 1962
being inconsistent with O.M. dated 22-6-1949 and 22-2-1959
violates Articles 14 and 16 of the Constitution. The re-
spondent raised three objections to the petitioners’ case in
their returns, namely, (i) There was a reasonable criterion
for the difference made between the case of the petitioners
and those placed on the impugned list of 7-2-1972 who are
above the petitioners because they have passed the pre-
scribed typewriting test so that Articles 14 and 16 of the
Constitution could not be said to have been violated in this
case whateverelse may have been infringed; (ii) The peti-
tioners not having assailed the order of confirmation of the
scheme on 1-5-1958 prescribing a reasonable ground for
distinction between the class of cases in which typewriting
tests have been passed to which the contesting respond-
ents in the impugned list below and the class of the peti-
tioners which had not passed the test. the petitioners could
not challenge the impugned scheme of 1972 at all; (iii) A
number of persons have been promoted and put above the
petitioners since 1962 acting under the scheme providing the
typewriting test so that there was inordinate delay in
filing the petition under Art. 32 of the Constitution.
Dismissing the petition, the Court,
HELD: (1) The alleged violation of the rule of seniority
according to length of service was not decisive even ac-
cording to the Ministry of Home Affairs O.M. dated 22-6-
1949. This memorandum shows that it was only directory
laying down a general rule of seniority which was presumably
subject to other exceptional factors which could also be
taken into account. [666 A]
P.C. Sethi & Ors. v. Union of India & Ors. [1975] 3 S.C.R.
21, followed.
(2) A rule prescribing a typing test cannot be said to
be unconnected with the duties of clerks who desire a promo-
tion to the next grade. A discrimination made on such a
ground could not violate Articles 14 and 16 of the Constitu-
tion whateverelse it may be said to violate. [668 E]
(3) A violation of statutory or other kind of rule in a
particular case cannot amount to a violation of Articles 14
and 16 of the Constitution. There may also be cases in which
a rule made is ultra vires for unreasonableness or
665
an any other ground and should not be deemed to exist. In
such_ a case, if the rule is enforced it may on the facts of
the particular case amount to a violation of Articles 14 and
16 of the Constitution also. The petitioners case is not
such a case at all. [668 E-F]
(4) The principles laid down by this Court in Joginder
Nath and Ors. v. Union of India & Ors. [1976] (2) S.C.R. 553
and in Amrit Lal Berry v. Collector of Central Excise [1975]
2 S.C.R. 960, apply to the petitioners case regarding laches
on their part. [669 C-El
JUDGMENT
ORIGINAL JURISDICTION: Writ Petition No. 156 of 1972.
(Under Art. 32 of the Constitution of India).
S.S. Javali, A. K. Srivastava and B.P. Singh, for
the petitioner.
G.L. Sanghi, S.P. Mital and Girish Chandra, for respond-
ents Nos. land3.
B. Datta, for respondent No. 194.
The Judgment of the Court was delivered by
BEG, C.J.--This is a petition under Article 32 of the
Constitution praying for a writ of certiorari, or a writ of
Mandamus or, any other appropriate, writ, order or direction
for the enforcement of the fundamental rights of the peti-
tioners under Article 14 and 16 of the Constitution. The
petitioners have been working as Upper Division Clerks and
pray for the quashing of a list, issued with Office Memoran-
dum dated 7.2.1972, for making promotions to the next grade
of Assistants on which the names of respondents 4 to 203
appear but not those of the petitioners. They claim that
the principles of seniority, contained in the Ministry of
Home Affairs O.M. dated 22.6.1949, as interpreted by this
Court in UNION OF INDIA v.M. RAVI VERMA & ORS. ETC.(1) had
not been applied to them. The contention seems to be that
the last mentioned decision contained an invariable mechani-
cal rule of seniority applicable to all classes of services
so that nothing beyond length of service in a particular
grade could determine seniority. It was alleged that the
impugned list was formulated in an arbitrary fashion.
Hence, the petitioners complain of violation of Articles 14
and 16 of the Constitution.
In paragraph 6 of the petition it was stated that even
persons appointed nine or ten years after the petitioners
had been promoted as long ago as 1969 to the grade of As-
sistants to which the petitioners put forward their own
claims. It was also stated that a large number of persons
have superseded the petitioners but a few names only have
been mentioned from amongst them. The whole case of the
petitioners thus rests on the submission that nothing beyond
length of service must determine the place on the list for
promotion to the grade of Assistants.
The petitioners allege a common cause of action inasmuch
as the impugned list of 17.2.1972 affects all of them.
They claim that all of them should have been governed by the
principles contained in
(1) [1972] 2 SCR 992.
666
the Memorandum of 22.6.1949. This Memorandum (Annexure ’C’
to the petition) shows that it was only directory laying
down a general rule of seniority which was presumably sub-
ject to other exceptional factors which could also be taken
into account. Hence, an alleged violation of the rule of
seniority according to length of service was not decisive
even according to this Memorandum.
The counter-affidavit filed by Shri P.L. Gupta, Deputy
Secretary to the Government of India, gives the long history
of a scheme which culminated in the promulgation of the
statutory rules framed under Article 309 of the Constitu-
tion of India called the Central Secretariat Clerical Serv-
ice Rules, 1962 by the President of India. It shows that
the scheme of 1949 was given a final shape by the Cabinet in
1954. and became effective from 1.5.1954. Under the
scheme, as finally framed, it was provided that those offi-
cers who were otherwise eligible for confirmation in the.
services at the initial constitution, should also pass a
typewriting test to be held by the Union Public Service
Comntission within a period of two years from 1-5-1956. It
appears that the confirmation of the initial constitution of
the service was delayed until 1958.
Some of the rather ambitious assertions of the petition-
ers suggest that their case is that they had been appointed
to an Upper Division grade on a regular basis so that their
seniority must date back to their date of promotion. This
suggestion was controverted by the respondents who alleged
that the petitioners had been only allowed to continue
provisionally on a temporary basis in the grade of Upper
Division of Clerks. It was stated, in the counter-affida-
vit, that as typing test had to be passed within two years
of 1st of May 1958, those who did not come within this
class came in the, class of the petitioners who, were
serving on an ad hoc or temporary basis. Hence, it was
submitted that those who had passed the typewriting test
within two years of the fixed date belong to another cate-
gory altogether. The respondents,. therefore, submit that
there has been no contravention of Articles 14 and 15.
Serious grounds of objection to the petitioner’s case
are three fold: firstly, that there was a reasonable crite-
rion for the difference made between the cases of the peti-
tioners and those placed on the impugned list of 7.2.1972
who are above the petitioners because they have passed the
prescribed typing test so that Articles 14 and 16 of the
Constitution could not be said to have been violated in this
case whatever else may have been infringed; secondly, that
the petitioners, not having assailed the order of confirma-
tion of the scheme on 1.5.1958. prescribing a reasonable
ground for distinction between the class of cases in which
typing test had been passed, to which the contesting re-
spondents in the impugned list belong and the class of the
petitioners, which had not passed this test, the petition-
ers’ could not challenge the impugned scheme of 1972 at all;
thirdly, a member of persons had been promoted and put
above the petitioners since 1962, acting under the scheme
providing the typing test, so that there was inordinate
delay in filing the petition under Article 32 of the Consti-
tution on 24.4.1972.
667
In their Writ Petition the petitioners
have no doubt challenged the validity of rule
17 of the Central Secretariat Clerical Service
rules for inconsistency with the Memoranda of
22.6.1949 and 22.12.1959 and alleged that this
also constitutes a violation of Articles 14
and 16 of the Constitution. This rule was
among rules notified on 28-9-1962. It lays
down as follows :--
"17. Seniority(1) The relative seniority of
members of Service appointed to any Grade
before the appointed day shall be regulated by
their relative seniority as determined before
that day.
Provided that if the seniority of any
such officer had not been specifically deter-
mined before the appointed day it shall be as
determined by the Department of Personnel in
the Cabinet Secretariat.
MHA No. 6/2/67-CS-II dated 20.12.67.
Provided further that the seniorty of an
officer referred to in the proviso to clause
(a) of rule 2 shall be determined by the
Department of Personnel in the Cabinet Secre-
tariat by taking into account the continuous
length of regular service rendered before the
appointment day by such officer in the grade
of lower Division or in any higher grade in
the offices of the Central Government.
(2) All permanent officers included in
the initial constitution of a Grade under rule
7 shall rank senior to all persons substan-
tively appointed to that Grade with effect
from a date after the appointed day, and all
temporary officers included in the initial
constitution of a Grade under that rule shall
rank senior to all temporary officers appoint-
ed to that Grade after the appointed day.
(3) Except as provided in sub-rules (4)
and (5), the seniority of persons appointed to
the two grades of the service after the ap-
pointed day shall be determined in the follow-
ing manner, namely :
1. UPPER DIVISION GRADE
(i) Permanent Officers.--The seniority
inter se of officers substantively appointed
to the Grade after the appointed day shall be
regulated by the order in which they are so
appointed to the Grade.
(ii) Temporary Officers.--The seniority
inter se of temporary officers appointed to
the Grade after the appointed day shall be
regulated as follows, namely:
(a) Persons included in the Select List
for a Grade shall rank senior en bloc to those
not included in the Select list.
668
(b) The seniority inter se of person includ-
ed in the Select List shall be in the
order in which their names are included in
the Select List.
(c) The seniority inter se of persons
not included in the Select List shall be
regulated by the order in which they are
approved for long term appointment to the
Grade.
Rule 7 provides as follows
"7. Initial Constitution of each
cadre.--The permanent and temporary officers
of each Grade in each cadre on the appointed
day shall be as determined by the Deptt. of
Personnel in the Cabinet Secretariat."
We find that, acting under Rule 7 set out above, the
Government of India had issued an order on 12-11-1962 allot-
ting permanent and temporary officers of the Upper Division
grade to the Central Secretariat Clerical Service.
Apparently, that allotment also determined the order of
seniority. In other words, the rule relating to the passing
of a typing test had been followed for a long period and had
actually been given effect to under the statutory rules in
promotions made and lists drawn up. This explains the
petitioners’ challenge to the validity of Rule 17.
We are unable to see how a rule prescribing a typing
test is unconnected with the duties of Clerks who desire a
promotion to the next grade. We do not find that a dis-
crimination made on such a ground could violate Articles 14
or 16 of the Constitution whatever also it may be said to
violate. It is not necessary for us to hold that a
violation of a statutory or other kind of rule in a particu-
lar case cannot amount to a violation of Articles 14 and 16
of the Constitution. There may also be cases in which a rule
made is ultra vires for mreasonableness or on any other
ground and should not be deemed to exist. In such a case,
if the rule is enforced, it may, on the facts of the partic-
ular case, amount to a violation of Articles 14 and 16 of
the Constitution also. The case before us does not appear
to be such a case at all. It seems to be covered by what
this Court said in P.C. Sethi & Ors. v. Union of India &
Ors., (1) with regard to the Office Memorandum of 22.6.1949
(at pp. 207-208):
" .... the Office Memorandum of June
22, 1949, is no bar to the Government in
making separate provisions for the mode of
constitution and future maintenance of the
service of Assistants. There is, therefore,
no obligation under the aforesaid Office
Memorandum on the part of the Government to
enforce a rule of bald length of continuous
service irrespective of other considerations
than the service was sought to be reorga-
nised and reinforced. As noticed earlier the
service had to be reconstituted and the tempo-
rary Assis-
(1) [1975] 3 SCR 20.
669
tanks properly observed keeping in view the
question of quality and efficiency as well as
at the same where regard being had to accom-
modate as large number as possible to gradual
absorption. In doing so we are unable to hold
that the Government has violated the provi-
sions of articles 14 or 16 of the Constitu-
tion. The Classification under the instruc-
tion for the constitution of regular temporary
establishment in the manner done cannot be
characterised as unreasonable in view of the
object for which these had to be introduced in
reconstituting the service to ensure security
of temporary employees assistant with effi-
ciency in the Service. There is no discrimi-
nation whatsoever amongst the equals as such
nor any arbitrary exercise of power by the
Government."
This Court has also explained in Joginder Nath & Ors.
v. Union of India & Ors.(1) and Amrit Lal Berry v. Collector
of Central Excise, New ’Delhi & Ors.(2) the principles on
which this Court will interfere under Article 32 of the
Constitution for an alleged violation of Articles 14 and 16
of the Constitution. It is also explained, there how delay
in invoking the jurisdiction of the Court, which may create
equitable rights of others, may give rational grounds for
discrimination so that it would cease to be a case of any
violation of Articles 14 and 16 at all.. We think that the
principles laid down in the cases mentioned above apply
here.
Consequently, we dismiss this Writ Petition, but, in the
circumstances of the case, the parties will bear their own
costs.
S.R Petition dismissed.
(1) [1975] 2 S.C.R. 553.
(2) [1975] 2 S.C.R. 960.
670